PUBLIC RECORD OFFICE
Reference -
TIITTI mmmhm C.O.885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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tions as to the medium of communication with the American public through their publishing houses; while the authors divide on the question of publication, a portion, not illogically, insisting upon the supposed duty of absolute protection without stint, limit, or condition, and a part are disposed to yield to the terms of the publishers; and this adjust- ment of the matter, it is supposed, would redound to the progress of science and the
arts.
A portion, and much the larger number of domestic publishers, are understood to be either hostile to the whole subject of international copyright, or consider all action in regard to it at least of questionable utility to the world of letters, and especially to the progress of science and the arts in this country, and among our own people.
The printers, type-founders, binders, paper-makers, and others engaged in the manu- facture of books, in large numbers remonstrate against the measure as calculated to diminish the popular sale and circulation of books, by raising the price thereof, and thus prejudicial to this branch of industry.
These classes, interests, and industries have been ably represented before the Committee, and it may be observed that from these the measure is invested with its special interest, as we are not aware of any popular representation or demand, by memorial or remonstrance, or otherwise, on behalf of either book buyers or readers, or the mass of the people.
The protection in his works that the author demands, it will be noticed, is an absolute and exclusive right of property therein. To all such appeals to Congress (without entering into the consideration of such a pretension as an abstract proposition), it is deemed suffi- cient to reply that the framers of the Constitution did not seem to have apprehended the justice of a claim so extensive on the part of authors, nor to have contemplated the promo- tion of the progress of science by legislation so partial and engrossing as that proposed; but, on the contrary, in the interests of science, and altogether subservient to its ends, and as an incentive to authorship to enter into its service, did provide for the enjoyment in their works of an especial privilege for a limited period.
The nature of the prerogative conferred, its use and limitation, are, each and all, alike inconsistent with the assumed rights; and, whatever abstract rights of property the author may be supposed to have in his production, it is clear that his appeal to Congress for protection can be recognized only within the express limitations of the Constitution.
It became important, in the outset, to bring to the examination of the subject a just appreciation of the provision of the Constitution in relation to it; that provision is as follows:-Congress shall have power "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
All opinions, interests, policies, and economies must be brought to the test of this clause of the Constitution, in which the objects and manner of legislation are clearly expressed, and must constitute the rule of action upon the subject.
It may be proper to remark that the policy of national copyright does not necessarily enter into the discussion. It may be assumed that the Constitution not only contemplated such legislation, but that such action is supposed to be consistent with and in the interest of science, and tends to its progress. Nor is it supposed that a question properly arises as to the abstract rights of the author in his writings; neither is it important to consider whether any such rights had been recognized in England or in the American States unterior to the Constitution, as these rights do not constitute the object nor form the basis of that legislative action contemplated in the Constitution.
The constitutional provision is primarily in the interest of science, to which the rights and interests of authors are subordinated, and with which they are not necessarily, in all respects, identical. The very terms of the instrument are a limitation on the power of Congress against the recognition of such absolute right; thus, "by securing for limited times to authors exclusive right to their writings,"
The precise question is, are the terms of the constitution equally applicable to inter- national copyright, and would their application “promote the progress of science?"
The language is sufficiently comprehensive, doubtless, to include all authorship. But in construing the constitution, reference should be had to the condition of affairs at the period of its adoption, the obvious. intent of the framers, as gathered from contemporaneous history, and must receive such construction as will carry out the object in view.
It was, it should be observed, to constitute, in a qualified sense a Government in the interests of the people of the United States. Its framers would not, therefore, be expected to be solicitous for the protection of individual rights of those alien to its jurisdiction, nor were the circumstances of their national position such as were calculated to invite to the consideration of topics so eminently international in their operations and relations.
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Besides, it must be borne in mind that the Constitution of the United States ante- dates all legislation upon international copyright in any country; that no thought of such a law was suggested to the convention that framed that instrument. Nor are there to he found in the history of the times such sentiments and opinions upon the subject as to justify a reasonable supposition that such a proposition could have been present in the minds of those who proposed the particular provision. It may be safe, therefore, to assume that international copyright was not within the contemplation of the Constitution, whatever interpretation the language may be thought to be susceptible of. To the argu- ment as to the mandatory character of the provision in the interests of universal authorship, it may be replied that none but citizens could pro, erly lay claim to protection of individual rights, and that, under the Constitution, these were all subordinated to the interests of science, and that, whoever invokes the protection of the one, must show that his demand is, at least, compatible with the other.
Whether the Constitution, in what it provides, is to be regarded us mandatory or permissive, confined to American or domestic authors, or extended to foreign or alien, in spirit and intent, it demands as a primary, essential, and paramount consideration, that whatever is done in its name shall be in the interest of and for the promotion of the progress of science. In the presence of this paramount object, all rights of authors, publishers, booksellers, and book-makers must needs take a secondary place in legislative consideration. Nor is it less certain that herein lies the true interest of all genuine authorship. A demand for copyright, national or international, as a measure of protection to a property right simply, necessarily tends to sink the question of science to the level of a commercial transaction, and subjects it to the odium of an indefensible monopoly. It is only when considered as a tribute to genius, the quality and beneficence of whose produc- tions are of universal recognition in the world of letters, that science and authorship become identical. It cannot be doubted that it, unded undue stimulus of national copyright, the quality of literary productions should become inferior, commonplace, and bancful, Congress, in the interests of science, could apply the remedy, by limiting the privilege or denying it altogether.
It has even been said that a tendency in this direction already exists; that authors who write for fame are growing fewer, and that writers who write merely for money are multiplying; that, in short, the relations between writers on one side, and publishers and the public on the other, are growing more mercenary; but this may be said to arise from the fact that the men of true genius who are really entitled to the honourable name of American authors are confounded with men who have no just claim to such a distinction. A question fairly arises and presents itself at the threshold of any proposition of copyright, whether this commercial spirit is identical with, and friendly to, the progress of science. Considering the undeniable fact that a larger portion of authors are now writing for gain than formerly, and that publishers have come to estimate their writings by the profits likely to accrue from their publications, can it be inferred that from such a union of literature and commerce the highest interests of science are likely to be promoted ? Under the influence of this union, can it be denied that a class of books are put upon the market which, in literary quality, bear slight resemblance to the productions of genius, and others, where the attribute of authorship could not well be discovered? And yet these all seck shelter under the laws of copyright, and enjoy that exclusive privilege designed alone for genius and the votaries of science."
While, doubtless, the constitutional provision had its origin in the belief in the identity of the interests of authorship and science, it is true that the law of copyright, as it lies in the Constitution, is not the protection of authors as an object-not as the reward of genius independent of science, but as an incentive to the former in the interests of the latter.
Is the question of authorship, in its relations to science, so simple and of such universal application as to be productive of equally beneficial results when subjected to the method of the Constitution as a rule for the different nations and differing conditions of letters therein ?
Authorship, standing by itself, although the essential element, still is not all the world of letters, and cannot in any measure, having at heart the interests of literature, be considered as standing independent and by itself. If it be conceded to be the soul of science, it is essential that its productions should be embodied in books, and these involve the varied skill, industries, and cunning workmanship of many hands, and at last, and not the least important agency, the enterprise, capital, and address, of the publisher through whom these books are to be introduced to the reading public.
These interests press upon the legislator at the very threshold of any measure of international copyright, demanding consideration and protection. The right conferred
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